ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
J. Prenger, for the Respondent
Respondent
- and -
EDUARDA MASSA
T. Hicks, for the Appellant
Appellant
HEARD: July 17, 2015 at Brampton
REASONS FOR JUDGMENT
[On appeal from the conviction of Fairgrieve J.
dated September 22, 2014]
André J.
1The appellant, Ms. Eduarda Massa (“Ms. Massa”), appeals her conviction of the charge of dangerous driving on the grounds that the trial judge misapprehended the evidence and the legal test and relied on extrinsic information which was not before the court in convicting her. Specifically, she contends that the trial judge patently failed to consider evidence called by the Crown which raised a reasonable doubt that the manner of driving, which the trial judge concluded was a marked departure from the norm, was the result of a momentary lapse by Ms. Massa. Second, that the trial judge relied on the possibility that Ms. Massa was impaired by the consumption of alcohol at the time of driving although the Crown called no evidence to support this. The Crown submits that the trial judge applied the correct legal test and considered all the evidence before properly convicting Ms. Massa.
BACKGROUND FACTS
2On August 2, 2013, Ms. Massa was operating her motor vehicle westbound on Burnhamthorpe Road approaching Wolfdale Road in the City of Mississauga.
3Ms. Massa’s vehicle rear-ended another vehicle which was stationary in the left turn lane waiting for the traffic lights to turn green.
4Following the collision, Ms. Massa reversed her vehicle and accelerated backwards, side-swiping a vehicle behind it and careening over a concrete barrier across three lanes of opposing traffic. She drove off the roadway and into a commercial parking lot where her vehicle came to rest after colliding with a parked vehicle outside a Red Lobster restaurant.
5The police subsequently charged Ms. Massa with the offences of dangerous driving and excess blood alcohol. At the commencement of trial on August 20, 2014, the Crown withdrew the excess blood alcohol charge.
EVIDENCE AT TRIAL
6The Crown’s first witness, Aron Bertalan (“Mr. Bertalan”) testified that he saw Ms. Massa’s vehicle backing up very fast, side-swiping the SUV behind him, taking a sharp turn, jumping an island and heading eastbound: Transcript at the trial, August 20, 2014, at p. 5 and 6.
7Mr. Bertalan further stated that it appeared that Ms. Massa’s vehicle was out of control and that the driver had pushed the wrong pedal, being the accelerator rather than the brake: Transcript of the Reasons for Judgment, August 20, 2014, at pp. 13 and 15.
8Under cross-examination, Ms. Massa’s counsel asked Mr. Bertalan the following questions and received the following answers:
Q. I’m going to suggest to you that this car, my client’s vehicle, had the appearance to you, from your perspective, of a vehicle that was out of control?
A. You might say.
Q. All right. Did it appear to you that this was the driving of somebody who was purposely doing this?
A. Well, first – my first impression was that it’s a young person, you know. So I thought maybe just pushed the wrong pedal, possible, it happens.
Q. All right. And by that you mean perhaps hitting the accelerator instead of hitting the brake?
A. Correct.
9Mr. Wayne Arthur Howard (“Mr. Howard”) testified that he was sitting in the left-most of the two left turn lanes, waiting for the light to turn green, when the appellant’s vehicle went past him on his right and collided with the back of Mr. Bertalan’s vehicle. All of a sudden, the appellant’s vehicle reversed, clipping some vehicles on his right, then across the median, went through a hedge, crossed the live lanes (in the opposite direction) and came to a stop after hitting a vehicle in front of the restaurant: Transcript of the evidence, August 1, 2014, at p. 20.
10Mr. Howard was surprised at how quickly the appellant’s vehicle was travelling in reverse. He thought that the person driving maybe wanted to be in control but wasn’t, perhaps because of a medical issue. Mr. Howard stated that he had seen people drive fast backwards if they were trying to get away from something, but the appellant’s vehicle slowed down at the end, after driving in reverse at a speed of 25 to 30 kilometres an hour: Transcript of the evidence, August 1, 2014, at pages 29-30. Mr. Howard also testified that while reversing Ms. Massa was always facing forward; she wasn’t looking around.
11Ms. Janice Simoes (“Ms. Simoes”) testified that she was walking out of the Red Lobster restaurant when she saw Ms. Massa’s vehicle travel at a very high rate of speed in reverse, before it slammed into a vehicle parked in front of the restaurant: Transcript of the evidence, August 1, 2014, at p. 37.
12Ms. Simoes spoke with Ms. Massa. The latter appeared very upset, distraught and unsure of what happened. Ms. Massa was crying and repeatedly asked, “What happened?”
TRIAL JUDGE’S DECISION
13The trial judge concluded at page 11 of his Reasons for Judgment that:
I am satisfied that having struck these three vehicles and having operated her car in the manner she did, that the actus reus of the offence of dangerous driving was clearly proved by the Crown.
14He also concluded that the mental element of the offence has been proven beyond a reasonable doubt.
15At page 12 of his Reasons for Judgment, the trial judge noted the following:
Mrs. Massa’s conduct can only be characterized, in my view, as a marked departure from the standard of case that a prudent driver would have exercised in the circumstances. A prudent driver in her place would have recognized the risks of failing to stop behind a car in front of her that was stopped at a right light, and having collided by suddenly veering to the left and striking one vehicle, would have recognized the importance of simply parking the vehicle rather than putting it into reverse and speeding up, side swiping another car and then accelerating further in reverse across three lanes of traffic and then mounting a curb and crossing a sidewalk where there could easily have been pedestrians. And then reversing at a speedy rate through a parking lot where there could easily have been other people and other traffic and eventually, in fact, colliding with a car that was parked in the handicapped parking spot outside the business there.
In my view, applying the terms that were used by Justice Charron, Mrs. Massa’s conduct on this occasion can only be regarded as so called “penal negligence”. Why she drove in the manner she did, perhaps was not disclosed by the evidence, but I am satisfied beyond a reasonable doubt that it would be wrong and inaccurate to characterize her manner of driving as simply a demonstration of a momentary lapse of attention.
16In response to defence counsel’s submission that Ms. Massa’s shock and surprise as described by Ms. Simoes raised a reasonable doubt regarding the mens rea of the charge, the trial judge noted the following:
In my view though, Mr. Hicks’ submission that the loss of control and the apparent shock and surprise on the part of the accused provides an exculpatory explanation for the manner of driving simply has no merit. There was no evidence of any exculpatory explanation that emerged in the course of the evidence, and in my view, evidence that the vehicle appeared to be out of control is simply further evidence of the dangerous manner in which it was being driven. It hardly provides a defence to the allegation in a case like this.
I am not overlooking the concern that was expressed by witnesses that Mrs. Massa might have had a medical problem and that might have accounted for her manner of driving, but there was absolutely no evidence called in support of any of the concerns that were expressed by the witnesses observing her conduct.
I accept that she demonstrated by saying, “What happened?”, that she seemed to be unaware of what had happened and that she was upset and distraught and crying after the third of the collisions, but this in my view can be regarded as a natural reaction to being involved in accidents of that kind. And, again, it hardly provides any justification for a finding that the necessary fault should not be inferred from the conduct.
In my view then, the evidence is only consistent with the finding that Mrs. Massa’s conduct on this occasion was blameworthy and it requires, given the fact that the Crown has proved both the actus reus and the mens rea of the offence, a finding of guilt and a conviction.
ANALYSIS
17This appeal raises two issues, namely:
(1) Whether the learned trial judge misapprehended the evidence and the legal test for dangerous driving; and
(2) Whether the learned trial judge considered extrinsic information in convicting the appellant.
ISSUE NO. ONE: Whether the learned trial judge misapprehended the evidence and the legal test for dangerous driving
18Prior to analyzing whether the trial judge misapprehended the evidence or the legal test for dangerous driving, it is necessary to consider the applicable standard of review for questions of mixed fact and law. It is now settled law that the standard of review for an error of fact is that of palpable and overriding error. Such errors include findings which are clearly wrong, unreasonable, or that which cannot reasonably be supported by the evidence. The appropriate standard of review for an error of law is one of correctness. An appellate court should manifest deference to a trial judge’s findings of mixed fact and law: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401 at paras. 52-61, and 110; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at paras. 26-37.
19The appellant submits that the trial judge misapprehended the evidence which suggested that the impugned driving was on account of a momentary lapse or inadvertence, and therefore vitiated the mental element required for a conviction.
20There is no dispute that the failure to consider evidence within the Crown’s case that is contradictory, is of assistance to the defence, or creates reasonable doubt about the Crown’s case, constitutes an error of law. R. v. Wu, [2004] O.J. No. 3342 (S.C.J.); R. v. Minuskin, 2003 11604 (ON CA), [2003] O.J. No. 5253 (C.A.); R. v. Strong, [2001] O.J. No. 1362 (C.A.); R. v. Legace (2003), 181 C.C.C. (3d) (Ont. C.A.).
21Neither is there any dispute that in order to amount to dangerous driving under s. 249 of the Criminal Code, the impugned driving must amount to a marked departure from the standard of care that a reasonable person would observe in the circumstances: R. v. Hundal (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.); R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49; R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60.
22There is a clear distinction between driving that constitutes a marked departure from the norm, and driving that can be merely described as a “mere departure” from the norm. The distinction between these two levels of conduct is a matter of degree: R. v. Beatty; R. v. Roy.
23Momentary inadvertence that occurs within a few seconds is more indicative of civil liability or liability for the regulatory offence of careless driving, and generally will not rise to the level of a marked departure from the norm which is necessary for a conviction for dangerous driving: R. v. Beatty; R. v. Willock, 2006 20679 (ON CA), [2006] O.J. No. 2451 (C.A.).
24The appellant submits that the learned trial judge erred in law by not addressing the momentary lapse evidence from the Crown’s witnesses.
25With great respect, I disagree. The trial judge concluded that it “would be wrong and inaccurate” to characterize the appellant’s driving as a momentary lapse of attention.
26Furthermore, the learned trial judge rejected the submission that the appellant’s demeanour following the incident supported a conclusion that the impugned driving resulted from a momentary lapse or inadvertence. He held that there was no evidence of any exculpatory explanation given by the appellant, or any evidence in support of any of the concerns that were expressed by the witnesses called by the Crown.
27The trial judge therefore addressed the momentary lapse defence from the witnesses in the Crown’s case. He concluded that the testimony of the witnesses did not support a conclusion that the impugned driving was the result of a momentary lapse or inadvertence, and that the driving reflected a conscious attempt by the appellant to extricate herself from the scene of the initial incident.
28It was open to the trial judge to arrive at that conclusion, and I see no reason why this court should overturn it.
ISSUE NO. TWO: Whether the trial judge improperly considered extrinsic information in convicting the appellant
29The appellant points to the trial judge’s comment that “the Crown case had a number of unasked questions and areas that were completely avoided”. Second, in the sentence phase of the proceedings the trial judge wanted information concerning the breath tests: what the results were, and when they were obtained. The appellant submits that these observations of the trial judge, collectively suggest that he was of the opinion that the appellant drove in the manner she did because she was impaired by the consumption of alcohol.
30Significantly however, the trial judge indicated, at page 17 of his Reasons for Judgment, that “I put aside any consideration of that aspect of the matter in determining whether the conduct amounted to dangerous driving or not.” Furthermore, in the trial judge’s reasons for conviction, there is no reference to the appellant having been impaired. It would therefore be improper to conclude that despite his assertion to the contrary, the trial judge convicted the appellant partly because he believed that at the time of the incident, she was not sober.
DISPOSITION
31For the above reasons, the appeal is dismissed.
André J.
Released: July 23, 2015
COURT FILE NO.: CR-14-597-00AP
DATE: 20150723
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
EDUARDA MASSA
Appellant
REASONS FOR JUDGMENT
André J.
Released: July 23, 2015